UNITED STATES v. MKHAIL (2018)

SUMMARY ORDER

Defendant-Appellant Steve Mkhail argues that the 18-month prison term and three years of supervised release imposed upon him for escape from an institution where confined by the Attorney General, in violation of 18 U.S.C. §§ 751(a), 4082(a), is procedurally unreasonable because the district court did not provide its reasons for sentencing him at the top of the applicable Guidelines range. See 18 U.S.C. § 3553(c) (requiring the district court to state the reasons for imposing the sentence it imposed). We assume the parties’ familiarity with the facts and record of prior proceedings, which we reference only as necessary to explain our decision to affirm.

The abuse of discretion “standard of review applies to appellate review of all sentencing decisions.” Gall v. United States, 552 U.S. 38, 49, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Because Mkhail did not raise this procedural objection to the district court at the time of sentencing, we review his claims for plain error. United States v. Verkhoglyad, 516 F.3d 122, 128 (2d Cir. 2008); United States v. Villafuerte, 502 F.3d 204, 211 (2d Cir. 2007). To demonstrate plain error, a defendant must show: “(1) error, (2) that is plain and (3) affects substantial rights.” Villafuerte, 502 F.3d at 209 (citing United States v. Banks, 464 F.3d 184, 189 (2d Cir. 2006); United States v. Doe, 297 F.3d 76, 82 (2d Cir. 2002) ). If the error meets these three requirements “we then must consider whether to exercise our discretion to correct it, which is appropriate only if the error seriously affected ‘fairness, integrity, or public reputation of judicial proceedings.’ ” Id. (quoting Doe, 297 F.3d at 82).

Mkhail’s challenge to his sentence as procedurally unreasonable fails. In United States v. Pruitt, 813 F.3d 90, 92 (2d Cir. 2016), we held it was not plain error when a district court did not provide a contemporaneous explanation for a defendant’s sentence but the court had adopted the presentence report in open court and the factual findings in the report adequately supported the sentence. See also United States v. Molina, 356 F.3d 269, 277 (2d Cir. 2004).

Here, the district court adopted the presentence report in its entirety and referenced facts that could be deemed aggravating factors: substance abuse while incarcerated and repeated failure to surrender. Even if the court had not discussed these factual findings on the record, “[b]ecause the district court in this case explicitly adopted in open court the factual findings of the presentence report, and those facts provide adequate support for the sentence, we are constrained by our precedent to conclude that there was no plain error.” Pruitt, 813 F.3d at 92. Although, as in Pruitt, it would have been the better course for the district court to give a more fulsome explanation for the sentence it imposed, on plain error review, we conclude that it was adequate.

We have considered all Mkhail’s arguments and conclude that they are without merit. Accordingly, we AFFIRM the judgment of the district court.